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Lord Cadman: I am grateful to the Minister for that explanation, although I found it a little disappointing. I am trying to reinforce the word "reasonable" and to make sure that in future, a more direct reasonableness is introduced in the provision of such facilities. However, at this hour of the night I do not intend to pursue the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Lord Williams of Mostyn moved Amendment 41:


After Clause 21, insert the following new clause--

CHARGES: IMMIGRATION CONTROL

(".--(1) The Secretary of State may, at the request of any person and in consideration of such charges as he may determine, make arrangements--
(a) for the provision at any control port of immigration officers or facilities in addition to those (if any) needed to provide a basic service at the port;
(b) for the provision of immigration officers or facilities for dealing with passengers of a particular description or in particular circumstances.
(2) "Control port" has the same meaning as in section 21.
(3) "Facilities" includes equipment.
(4) "Basic service" has such meaning as may be prescribed.").

The noble Lord said: This group of amendments comprises in addition Amendments Nos. 217 and 220. This clause replaces Section 9(4) of the Immigration Act 1988 and clarifies the Secretary of State's powers to provide on request, and in return for a charge, additional immigration services or to provide immigration officers or facilities to deal with passengers of a particular description. We have in mind, for example, fast-track clearance at airports or cruise liner immigration clearance.

We want to work in close partnership with the port authorities but need to clarify existing provisions, to ensure that charges can be made when a port requires additional immigration control resources to be provided. We need to define the level of service to be provided without charge-the "basic service". We are working closely with DETR officials and have had numerous detailed discussions with various organisations likely to

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be affected, both before and since the publication of the White Paper. We are consulting with industry representatives and hope to reach a reasonable agreement on the definition of "basic service".

Our intention is to provide a publicly funded basic service at all control ports, whether or not designated as ports of entry under Section 33(3) of the Immigration Act 1971. If a different level of service is required, that should be made available on request for payment. Amendments Nos. 217 and 220 are consequential changes to Schedules 13 and 15. I beg to move.

On Question, amendment agreed to.

Clause 22 [Deception]:

Lord Cope of Berkeley moved Amendment No. 42:


Page 16, line 8, after ("include") insert ("material").

The noble Lord said: This clause criminalises asylum seekers who use any deception. I do not disagree with that as a general overall principle, but it seems to me that, in some cases, there will be a small level of deception which should not lead to the same consequences as would a major attempt to get into the country by absolute deception. We must remember that many of these people are under great strain at the time of their arrival when seeking asylum. In those circumstances, we all know that the whole truth may not come out. Withholding some piece of evidence, or the fact that some evidence was not disclosed, might be regarded as deception. Indeed, "deception" is not only telling a falsehood; it is also omitting to disclose some information which later turns out to be material.

Therefore, it seems to me that we should modify the clause slightly by adding the word "material", so that only "material deception" can lead to such fierce penalties. I beg to move.

Lord Hylton: It seems to me that the amendment just moved by the noble Lord, Lord Cope of Berkeley, is necessary. It may save the time of the Committee if I try now to explain the reasons that moved me to give notice of my intention to oppose the Question that Clause 22 should stand part of the Bill.

I was concerned with current applications to enter or remain in the United Kingdom and not with people who may be resisting enforcement action. I was particularly concerned that mere inaccuracy, perhaps in describing events that occurred some time ago, should not be construed as deception. Asylum seekers may well have escaped from a persecuting or life-threatening country only by concealing or embellishing the bare truth of their situation. They might feel an obligation to maintain the consistency of their stories on arriving in this country.

There have been cases in the past where immigration officials have seized on minor inconsistencies or errors in an application to cast doubt on the applicant's whole case. It would be wrong for the culture of disbelief to be enshrined by more than one reference to "deception" in the Bill. In my view, it is also important that inability or refusal to answer intimate questions should not be understood as deception in cases of torture or rape victims.

I was further alarmed by the fact that neither the 1971 nor the 1996 Act define the meaning of "deception". On April 20th, the Minister in another

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place apparently referred to the definition in the theft Acts, but only in the context of penalties, so that what he then said may not be relevant to the main purposes of this Bill. I have seen and read a learned article in Criminal Law by Sir John Smith QC and the late Mr Brian Hogan of Grays Inn but as this refers only to the theft Acts it also may not be of much help. What I seek both in immigration and asylum cases is that each one should be treated fairly on its individual merits and in particular that deception should not be read into cases where it was not intentional, deliberate, fraudulent or dishonest. Amendment No. 42 may meet this case. I shall in any case look forward to hearing the reply of the Minister.

Midnight

Lord Alton of Liverpool: I support the remarks of my noble friend Lord Hylton on Amendment No. 42. However, I wish to ask the Government about the conflict that may arise under Article 31 of the Refugee Convention and Clause 22 as it currently stands. In so far as the measure may be applied to asylum seekers and refugees, particularly to those entering on false documents, do not the Government agree that it should be amended to limit its scope and definition and that that should be reflected in guidelines to prosecuting authorities? If the Government fail to do that, a conflict may arise with regard to Article 31 of the Refugee Convention. That could leave the Government open to action and possibly to further cases of judicial review.

Earl Russell: At Second Reading of this Bill I referred, perhaps in a slightly lighthearted way, to the possibility that one might argue that asylum seekers were more likely to be fraudulent if they came on genuine documentation than if they came on false documentation. Since then I have had the dubious pleasure of reading the Asylum Aid publication, Still No Reason At All. I found that I should not have been so lighthearted. What I was treating as a joke is fact. In the words of the publication,


    "A staple of refusal letters runs thus: The Secretary of State notes that you were able to obtain a properly issued passport which you then used to leave [country as appropriate] through normal immigration channels without difficulty. He has concluded that this indicates the authorities have no interest in you".

But if not using deception leads one to be regarded as an asylum seeker who is abusing the system, and using deception excludes one from the process, is not the right of asylum being rendered nugatory?

I support the point that the noble Lord, Lord Alton of Liverpool, made about Article 31 of the Refugee Convention. With the leave of the Committee I wish to read Article 31(1),


    "The contracting states shall not impose penalties on account of their illegal entry or presence on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".

I ask the Minister to reconcile Article 31(1) of the UN Convention of 1951 with Clause 22 of this Bill.

Lord Falconer of Thoroton: Clause 22 extends and strengthens the existing deception offence under

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Clause 24A(1)(a) of the 1971 Act. The effect of the amendment of the noble Lord, Lord Cope of Berkeley, would be to insert the word "material" before "deception" in the new offence. The word "material" does not appear in the current offence and I do not believe that it is necessary. It seems to me beyond doubt that for any prosecution under the new offence to succeed it will have to demonstrate that any deception is material to a person's obtaining, or seeking to obtain, leave to enter or remain, or their securing, or seeking to secure, the avoidance, postponement, or revocation of enforcement action. This is because new Section 24A(1) makes clear that the means used have to include deception.

Just to make that clear, Section 24A(1) states:


    "A person who is not a British citizen is guilty of an offence if, by means which include deception by him ... he obtains or seeks to obtain leave to enter or remain in the United Kingdom".

So the deception must be one of the things that led to him getting the right to enter. If it did not contribute to that, then it is not material. The word "material" is not in the existing offence; this part of the section is a repetition of the existing offence. It is not necessary, therefore, to put it in because the position is exactly as the noble Lord, Lord Cope of Berkeley, would wish it to be.

As far as concerns the more general points, we understand, of course, that an asylum seeker may arrive here with false documents or no documents at all. Genuine refugees who arrive here directly from a territory where they fear for their life or freedom, and who present themselves without delay and claim asylum, are covered by Article 31 of the 1951 Convention. This will be taken into account by the prosecuting authorities in determining whether to prosecute. It will be for the Crown Prosecution Service ultimately to decide whether any prosecution should proceed. It may very well not be in the public interest to do so unless there has been serious deception. Even having regard to Article 31, we believe that the criminal law has a proper role to play in some cases.

I hope in the light of those assurances that the noble Lord will not press his amendment.


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